53 Pa. Super. 319 | Pa. Super. Ct. | 1913
Opinion bt
The principal question involved in this appeal is, whether a justice of the peace has power to issue a scire facias upon a judgment for damages and costs, which was rendered by him or his predecessor in office in a proceeding, instituted by a purchaser at sheriff’s sale to obtain possession of the premises. No mention of a justice’s power to issue a scire facias, except against special bail, is made in the act of March 20,1810, 5 Sm. Laws 161, and it was contended in Berryhill v. Wells, 5 Binney, 56, that it existed in no other case. But the court held it to be appurtenant to the power of issuing an execution, and included in it, though not expressly mentioned. The principle is impliedly recognized in the Act of May 5, 1854, P. L. 581, which provides that no execution shall be issued on a judgment rendered before a justice of the peace or alderman, after five years from the rendition of such judgment, unless the same shall have been revived by scire facias or amicable confession. It is not pretended that the scire facias in the present casé was unnecessary, and therefore unwarranted, because of anything in the nature of the judgment in question which relieved it from the inhibition of the statute. What is claimed is, that the power of a jus
Another reason suggested for denying the plaintiff’s right to judgment upon defendant’s appeal to the common pleas from the judgment of revival entered by the justice of the peace upon the scire facias is, that incident to such judgment would be the right to issue an execution out of
The purpose of the scire facias in such a case as this is to give the defendant an opportunity of showing payment. The merits of the original judgment cannot be inquired into. In view of these well-settled principles the plaintiff was entitled to a binding direction in its favor, as no evidence was produced showing that the judgment had been paid wholly or in part, and no reason was shown why it should not be revived or why the plaintiff upon such revival should not have the right to issue process for its collection.
The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of the plaintiff non obstante veredicto as provided in the act of April 22, 1905, P. L. 286.